NABIN CHANDRA KANSABEHERA Vs. HEMANT KUMARI KANSABEHERA

JUDGEMENT

(1.) The petitioner questions the legality of the order dated 25-8-1995 passed by the learned Sub-divisional Judicial Magistrate, Gunupur (in short, 'SDJM') attaching the salary of the present petitioner towards the interim maintenance granted in favour of the opposite party.

(2.) The facts of the case are as follows :

(3.) Mr. C.A. Rao, learned counsel for the petitioner before us contended that the impugned order passed by the learned S.D.J.M. to attach the salary of the petitioner without giving him any opportunity either before passing the order granting maintenance or before passing the order of attachment of being heard is against the principles of natural justice and is liable to be set aside. The learned counsel for the wife, however, contended that S. 126, Cr. P.C. authorises the Magistrate to pass ex parte order of maintenance and as such, the order passed by the learned S.D.J.M, is sustainable. Section 126 of the Code lays down the procedure which is to be followed in deciding a petition under S. 125, Cr. P.C. The proviso to sub-Sec. (2) of S. 126 stipulates that if the Magistrate is satisfied that the opposite party is wilfully avoiding service, or wilfully neglecting to attend the Court, he may proceed to hear and determine the case ex parte but such an ex parte order made by the Magistrate may be set aside subsequently on good cause being shown within the three months from the date of the order. The essence of the proviso is wilful avoidance of service or wilful negligence to attend the Court and unless the Magistrate is satisfied of such conduct of the opposite party, he would have no jurisdiction to proceed ex parte. But where in a proceeding under S. 125, Cr. P.C. a petition supported with an affidavit is filed claiming interim maintenance the Magistrate in appropriate case may grant interim maintenance ex parte even before service of notice on the person from whom maintenance is claimed. Such a view also finds support from the law laid down by the Apex Court in Smt. Savitri v. Govind Singh Rawat, AIR 1986 SC 984 : (1986 Cri LJ 41), wherein it has been held that order for interim maintenance may be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the person against whom such an order is made may be heard. But in the instant case, the impugned order has been passed under different circumstances. It appears that though the learned Magistrate awarded the interim maintenance by his order dated 23-3-1993 and issued a notice to the opposite party in that Misc. case to show cause as to why the order shall not be made absolute he asked the counsel of the opposite party who was appearing for the accused-husband in ICC No. 2 of 1993 on 24-8-1993 to appear in the Misc. case No. 2 of 1993 for the opposite party before the service of show cause notice on him. The learned counsel filed a memo with an undertaking to file the Vakalatnama and the counter by the next date of posting i.e. 15-9-1993, but before the appointed date, the learned Magistrate advanced the case to 25-8-1993 on the petition filed by the wife and passed the order of attachment of salary of her husband without giving him any opportunity to defend his case. It appears from the order of the learned Magistrate dated 25-8-1993 that on the undertaking of the counsel for the opposite party, he dispensed with issuance of summons to the opposite party. So the learned Magistrate accepted the appearance of the counsel as the appearance of the opposite party on 24-8-1993. Therefore, the order passed on the next day i.e. on 25-8-1993 by the learned Magistrate although has been passed without even serving a copy of the petition on the opposite party or his counsel cannot be treated as on ex parte order as envisaged under S. 126, Cr. P.C. Though an order for interim maintenance can be passed ex parte the circumstance must support the necessity of such an order. Here in the instant case, it is alleged by the wife before the learned Magistrate that she was deserted by her husband on 16-8-1992. She filed the petition for maintenance under S. 125, Cr. P.C. on 11-1-1993. Along with her petition she also tiled a petition for interim maintenance supported with an affidavit, but the said petition was moved only on 23-3-1993. The learned Magistrate passed the order awarding interim maintenance on 23-3-1993 and passed the order of attachment on 25-8-1993 without giving any notice to the counsel of the petitioner who had already appeared for the opposite party. As the learned Magistrate has passed the impugned order without hearing the opposite party or his counsel, the order is liable to be set aside.